The contractor and the owner, and any other person to whom a permit is issued, shall, during the period for which the permit is issued, and as provided in § 92.04, have all of the duties and responsibilities identified in this subchapter, other applicable ordinances of the city, and as provided for in state and federal law. The owner, its agents, assigns, contractors and subcontractors installing the facilities, shall continually have the duties identified in this subchapter for so long as facilities or property, under the control of any owners, and any subsequent owners thereof, are located in the rights-of-way or streets, to perform pursuant to the terms of this subchapter.
(A) Duty to barricade and protect. The owner and the contractor, and every person to whom a permit is issued under this subchapter, shall have a duty to ensure that each contractor, subcontractor, employee, agent or assignee, by placing barriers, lights and other sufficient safeguards, including a watchperson, if necessary, around all cuts, openings, excavations, installation sight and materials, implements and tools used in connection with the construction activity, and shall conform to the provisions of this subchapter and all requirements of the Building Inspector during the prosecution and completion of the work. All barricades and barriers shall be erected and maintained in compliance with accepted industry practices and applicable safety standards. The owner and the contractor shall be responsible for the costs and expenses of all barricades, barriers and watchpersons:
(1) Prosecutes the work diligently and in a good and workmanlike manner; and
(2) Safeguards and protects the public upon or using the street, right-of-way or other place where the work is being performed, from accidents, injury or damage.
(B) Supervision of work. It shall be the duty of the owner, the contractor and the supervisor of the work site, who shall cause to be made any hole, cut, trench, excavation, mound, embankment, installation or other obstruction in any street or right-of-way, to carefully guard or cause to be guarded such hole, trench, excavation, mound, embankment, installation or other obstruction while the same may exist and not to suffer the same to remain beyond a time reasonably sufficient for the completion of the construction or removal of the obstruction, and to repair the portion of the street or right-of-way or any facility or property affected thereby so as to restore the same to as good or better condition than existed just previous to the activity.
(C) Duty to promptly repair. It shall be the duty of the owner, the contractor and the supervisor of the work site, on whose behalf the hole, trench, mound, excavation, construction activity, installation or other obstruction or intrusion shall be made, or has been made, in the streets or rights-of-way of the city, to protect the same while such condition exists and to promptly repair the same so as to leave the street or right-of-way in as good or better condition than as before the work. All facilities, streets, sidewalks or other structures or property damaged, altered or injured, in any fashion, shall be restored with similar material and workmanship to that existing before the same was damaged, altered or injured through any actions of the owner, contractor or person employed in any fashion thereby. All work shall be done to the satisfaction of the Building Inspector whose duty it shall be to inspect the same after it has been done.
(D) Removal and reconstruction where work defective. All construction activities undertaken in the streets and rights-of-way of the city are declared to be wholly subject to the exclusive control of the city, and whenever, in the opinion of the Building Inspector, any work shall not have been duly completed within a reasonable time or shall have been executed in a defective manner, whether because of bad workmanship or material or because not true to lines or grades or specifications required therefor, then upon written demand or notice from the Building Inspector, the contractor or the owner shall promptly remedy, complete or remove and reconstruct the incomplete or defective construction all as the Building Inspector may require, and these provisions shall also comprehend and apply to all repairs, installations and maintenance activities. If the contractor or owner shall fail or refuse so to do within a reasonable time as specified in writing by the Building Inspector, then, if the Building Inspector shall so order, the work may, at the expense of the owner and contractor, be completed, corrected or removed and wholly or partially reconstructed by the city, or its instance, in such manner as in the opinion of the Building Inspector may be necessary to make the work as good as originally required, and the work may be done by contract or otherwise, under the provision of this subchapter and the direction of the Building Inspector.
(E) Excavation. All excavations in the streets and rights-of-way are declared to be wholly subject to the rules, regulations, directions and control of the city, and whenever, in the opinion of the Building Inspector, any work shall not be in compliance herewith, the permit, and Appendix A at the end of this chapter, then upon written demand or notice from the Building Inspector, the owner and contractor shall promptly remedy, complete or fill the excavation all as the Building Inspector may require. All excavations made into any street or right-of-way shall be repaired to as good or better condition than the street, right-of-way or other property was in prior to the excavation. Any excavation located in or over the rights-of-way or streets within the city shall and does constitute a nuisance when maintained or permitted to exist by any person in an unwholesome or nauseous condition, or in a manner by which stagnant water accumulates, or in a manner in which water collects where it is possible and probable stagnant water accumulates, or in a manner in which water collects where it is possible and probable mosquitoes will breed, or in a condition where rats could harbor, or in a manner and condition constituting a breeding place for flies, or in a manner and condition where filth, garbage, trash, debris or other discarded material accumulates and is deposited, or is maintained or permitted to exist in an unfenced, open condition, accessible to children or other members of the public, or is maintained and worked in such a manner as to disturb, effect or destroy the lateral support of or block or otherwise impede traffic on any street, alley, road or rights-of-way, or that is maintained or permitted to exist in any condition which constitutes a possible and probable medium of transmission of disease to or between human beings, or to be maintained or permitted to exist any one or more of the above-enumerated conditions.
(F) Relocation of facilities. All persons placing facilities in the right-of-way or streets or owning, operating or maintaining facilities in, over, under, through, along and across the rights-of-way or streets of the city shall be responsible for the relocation and costs of relocation of the facilities when the public health, safety or a public purpose requires relocation, or when the facilities are located therein without a permanent occupation permit, license or franchise as appropriate for the occupation.
(1) Permanent relocation. Upon 30-days written notice by the city, the owner of a facility shall, at the owner's expense, begin relocation of its facilities that are within a right-of-way or street, when deemed necessary by the city for the public health or safety, or for any public purpose, or to permit the widening, straightening or improvement of a street, drainage, water or sewer project, or any other public works project. The notice by the city may specify the new location for the owner's facilities along the rights-of-way or streets. The city shall have the right to move any facilities within the rights-of-way or streets to cure or otherwise address a public health or safety concern, to accomplish a public purpose, or to widen, straighten or improve a street, water or sewer projects or other public works projects, or when no permit for occupation has been granted and the owner refuses to move the facilities. The owner shall pay the costs and expenses of moving the facilities.
(2) Temporary relocation. Upon 30-days' written notice by the city, the owner of a facility shall temporarily relocate any portion of its facilities within the rights-of-way or streets at the owner's own expense when deemed essential by the city for the public's health and safety or to permit construction activities of the city, or water or sewer projects or any other public works project. The notice by the city shall specify the affected areas where the facilities are located and the area for temporary relocation of the owner's facilities along the rights-of-way or streets. The city shall have the right to move any facilities within the rights-of-way or streets to cure or otherwise address a public health or safety concern, to widen or straighten streets, water or sewer projects or other public works projects or construction activities where the owner refuses to move the facilities. The city shall assess the reasonable costs and expenses of moving the facilities against the owner.
(G) Temporary removal of aerial wires. The owner of aerial wires, on the request of any person, shall remove or raise or lower aerial wires within the city temporarily to permit the moving of houses or other bulky structures. The expense of the temporary removal, raising or lowering of wires shall be paid by the benefitted party or parties, and the owner of the wires may require the payment in advance. The owner shall be given not less than five business days advance notice to arrange for the temporary wire changes.
(H) Traffic interference. The owner and contractor shall endeavor to minimize disruptions to the efficient use of the rights-of-way and streets by pedestrians and vehicular traffic, and the rights-of-way and streets shall not be blocked for a longer period than shall be reasonably necessary to execute all construction, maintenance and/or repair work. Prior to blocking any street or right-of-way the owner and/or contractor shall obtain a permit as required herein.
(I) Maintenance of facilities. The owner of any facility and person holding a certificate of occupancy, license or franchise shall be responsible for ensuring the continued maintenance, repair, removal of any nuisances and other upgrades or repairs to maintain the facility in a safe and good workman like condition. Any vegetative growth interfering with the facilities that is determined by the Building Inspector to be a nuisance shall be removed, cut or cleared at the sole cost and expense of the owner of the facility or holder of the certificate of occupancy, license or franchise. Circumstances and conditions that impose an threat to the public health, safety or welfare shall be promptly remedied by the owner, and a known emergency condition that exists and is determined to require immediate attention so as not to reasonably allow for notice under this section may be immediately abated by the city, and notice of the abatement and costs for the expenses incurred will be forwarded to the owner or holder of the certificate of occupation, franchise or license for reimbursement to the city as required in § 92.08.
(J) Tree trimming. The owner of facilities located within the rights-of-way or streets shall not trim any trees upon or overhanging the rights-of-way without first obtaining a permit as provided herein. All activities and costs necessary to protect and preserve the facilities from damage due to trees shall be the responsibility of the owner of the facilities.
(K) Violations; notice; failure to abate.
(1) In the event the Building Inspector shall determine that a situation exists which is an immediate threat to the health, safety and well-being of the general public and that immediate action is necessary, the Building Inspector may take action as shall be necessary, including issuing citations for violations of the terms and provisions hereof to the owner or contractor committing the violation.
(2) In the event the Building Inspector determines a situation constitutes an immediate threat to the public health, safety and welfare, and the owner or contractor is absent or fails to immediately remedy the situation, the City Administrator may, upon evidence heard, determine that an emergency exists and order action as may be required to protect the public health, safety and welfare, including ordering repair or abatement of the nuisance. In such event, the city may also prosecute an action in any court of competent jurisdiction to recover its costs.
(3) In the event any owner or contractor shall fail or refuse to remedy any of the conditions or violations indicated by the Building Inspector within ten days after notice is sent, or immediately if determined by the city to be an emergency and the owner or contractor is absent or fails to immediately respond, the city may do the work or cause the same to be done, and pay therefore, and charge the expenses in doing or having the work done or improvements made, to the owners of the facility, or the contractor performing construction activities, whereupon the charge shall be a personal liability of the owner and/or the contractor to the city.
(4) Notices served upon an owner or contractor may be verbal, or may be served on the owner or contractor by an officer or employee of the city delivering a written notice to an employee or officer of the owner or contractor at his, her or their respective place of business, or may be by letter addressed to the owner or contractor at their post office address, or if personal service may not be had, or the owner and contractor's address be not known, then notice may be given by publishing a brief summary of the order at least once in the official newspaper of the city, by posting a notice on or near the site or location of each facility or property upon which the violation relates, or by posting notice on a placard attached to a stake driven into the ground on the property or facility to which the violation relates and addressed "Facility Improvements", "To Whom It May Concern" and the publication shall be deemed sufficient notice.
(5) In the event any owner or contractor is mailed a notice in accordance with division (D) above and the United States Postal Service returns the notice as "refused" or "unclaimed" the validity of the notice is not affected, and the notice is considered as delivered.
(6) Notices provided by mail or by posting as set forth above may provide for year round abatement of the nuisance and inform the owner that should the owner commit any other violation of the same kind that pose a danger to the public health and safety on or before the first anniversary of the date of the notice, the city without further notice may abate the violation at the owner's expense and assess the costs against the property.
(7) Appeals from a decision of the Building Inspector identifying a violation or nuisance shall be filed in writing with the City Secretary within five days after the notice to abate a nuisance or notice of a violation of this subchapter is given. The procedures for appeal shall otherwise be the same as required herein.
(L) Emergencies. In the case of fire, disaster or other emergency threatening life or property, as determined by the city, the city may remove or repair only the part of the facility required to be removed or repaired to remove the threat; provided, however, the city shall first use its reasonable efforts to immediately notify the owner of the threat and allow the owner to remove or repair the part of the facility required to be removed or repaired to remove the threat. In such event, neither the city, nor any agent, contractor or employee thereof shall be liable to the owner or its customers or third parties for any damages caused them or the facility, such as for, or in connection with, protecting, breaking through, moving, removal, altering, tearing down or relocating any part of the facility.
(Ord. 2006-003, passed 3-22-2006)